Gender-Diverse Marriage Laws Do Not Infringe the Liberty of Gay and Lesbian Americans

According to a recent amicus brief by scholars of liberty, same-sex marriage is not only counter to the Supreme Court’s long line of personal liberty cases, it may even be prohibited by them.

In 1885, just two decades after the people adopted the Fourteenth Amendment, the Supreme Court unanimously affirmed “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” Almost a century later, 1972, the Court unanimously and summarily reaffirmed the male-female definition of marriage by rejecting the claim that the Constitution requires states to recognize same-sex “marriages.” The answer was obvious—as Justice Brennan had written a year earlier, “the formality of marriage primarily signifies a relationship between husband and wife.” Indeed, there is no record before 1990 of any American judge saying otherwise.

Now our Supreme Court is faced with precisely the same issue. In urging the Court to constitutionalize same-sex marriage, and thus engage in a massive repudiation of prior consensus and precedent, the petitioners rely on a handful of recent cases, especially Lawrence v. Texas (2003), in which a divided Court reversed, as unconstitutional, a conviction under Texas’s anti-sodomy statute.

In Lawrence, the Court expressly denied that the case involved any “public conduct” and that “the government must give formal recognition to any relationship.” Lawrence, then, said nothing favoring any constitutional right to governmental recognition of same-sex marriage.

Petitioners, however, insist that despite the disclaimer, Lawrence did involve such “formal recognition.” A review of that opinion, authored by Justice Kennedy, shows that Lawrence’s logic was expressly conservative—a development and renewal of a long line of precedents extending back to Meyer v. Nebraska (1923). A consideration of the Meyer-Lawrence line of cases, as elaborated in Lawrence, fully confirms Justice Kennedy’s disclaimer.

Indeed, same-sex marriage is not only foreign to those precedents, but in one respect may be prohibited by them.

The Meyer-Lawrence Jurisprudence Is Conservative.

Justice Kennedy’s opinion in Lawrence primarily argues from precedent. It begins with citations of Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), followed by an elaborate discussion of Meyer’s more recent progeny, beginning with Griswold v. Connecticut (1965) and extending to Planned Parenthood of Southeastern Pa. v. Casey (1992).

Lawrencethus was based on precedent. To be sure, the Court expressly overturned one precedent, Bowers v. Hardwick (1986). But the Court did not launch a revolution. Rather, the Court held that Bowers was an aberrational decision, at odds with both prior and subsequent precedent in the Meyer-Griswold-Casey line: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.”

The law challenged in each of the Meyer-Lawrence cases had three features. First, each case involved the abridgement of a personal liberty—that is, the power of individuals to act or not act in a certain way. In Meyer, a majority of this Court affirmed the right of parents to delegate their “natural duty” and educational right to a private teacher by “engag[ing] him so to instruct their children.” In Pierce, the Court vindicated the parents’ right to withhold their children from public schools and send them instead to sectarian schools. Four decades later, in Loving v. Virginia, a unanimous Court endorsed the right of a man and a woman, regardless of race, to marry and cohabitate. In Griswold and subsequent cases, through Casey, the Court repeatedly cited Meyer and repeatedly upheld (over repeated dissent) the right to the use of contraception and abortion, and, more generally, the liberty to decide “whether to bear or beget a child.”

Second, all the cases involved the actual or prospective enforcement of criminal statutes, whether prohibiting certain private education, restricting possession of contraception, or banning some abortions.

Third, in each of those cases, this actual or prospective enforcement was found to violate liberties deeply rooted in our common-law tradition. In Meyer, the Court set forth the general rule: the “liberty” secured by the Fourteenth Amendment incorporated “generally those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer applied this principle by endorsing the traditional duty and right of parents to educate their offspring.

Accordingly, Meyer’s progeny—Loving, Griswold, and Roe—continued to look back to our common-law tradition. Even if the history set forth in Roe was mistaken, the “principle and logic” of Roe was consistent with its forerunners: (1) the vindication of a personal liberty (2) against criminal laws, (3) the enforcement of which was found to violate rights long recognized at common law.

In each of these three respects, Lawrence was faithful to its predecessors. First, the case involved personal liberty: adults’ freedom from criminal liability in their “private sexual conduct.” Second, Lawrencelikewise involved the abridgment of liberty by statutory criminal prosecution, not mere state disapproval or non-recognition.

Third, Lawrence found that such criminal enforcement violated principles long recognized at common law. Like its forebears, Lawrence purported to renew our common-law liberty tradition against legal innovation. The Court explained that laws against certain sexual acts, however traditional, were traditionally unenforced against private conduct by consenting adults. The absence of enforcement was glaringly conspicuous given the undoubted prevalence of such conduct, whether marital or otherwise. As the Court suggested, due process effectively precluded such enforcement, for where the conduct was private and consensual, prosecution would have required a violation of traditional procedural rights, including testimonial privileges and/or the freedom from unreasonable intrusions into the home.

The Lawrence Court expressly disavowed any effort to find a “right to engage” in any private nonmarital act. The Lawrence Court overturned, instead, a sharply-divided Bowers Court, which had endorsed the criminal enforcement of such law against consenting adults. This enforcement violated privacy and other procedural liberties long recognized by common law and our broader tradition. Constitutional liberty encompassed adults’ freedom from criminal liability in their consensual, “private sexual conduct.”

Lawrence, therefore, stands for the same principle as its forerunners, stretching back to Meyer, if not beyond: the Fourteenth Amendment prohibits the states from enforcing criminal law so as to abridge personal liberties long recognized at common law.

Same-Sex Marriage Is Foreign to the Meyer-Lawrence Jurisprudence.

In sharp contrast, the purported right to same-sex marriage has none of these features.

First, gender-diverse marriage laws do not impair any personal liberty. To be sure, such laws emphatically “discriminate”—not only on the basis of gender diversity, but also number (two and only two), natural personhood (corporations cannot marry), and other grounds. But the laws do not impede anyone’s personal ability to act or refrain. The laws do not define permissible private conduct but permissible governmental conduct: the state executive and judicial authorities must reserve the status, benefits, and presumptions of “marriage” to just one among the countless diversity of free associations that persons may enter under our Constitution.

Second, this case does not involve criminal law or liability. Among Petitioners’ list of concerns, there is no mention of any deprivation of bodily liberty by imprisonment or deprivation of property by punitive fine. Instead, Petitioners seek a variety of important civil benefits and burdens, including marriage’s legal presumptions (as to offspring, property, etc.), adoption rights, as well as the simple status of governmental “marriage.”

Third, and most emphatically, the traditional definition of marriage is not opposed to our common-law tradition. Before the 1990s, all authorities concurred that marriage is a male-female agreement that serves, as a primary (though not exclusive) purpose, the procreation and education of offspring. Most notably, this definition and purpose of marriage was endorsed by the same authorities holding that infertility was not an impediment to a valid marriage.

Prior to the late twentieth century, there does not seem to be any disagreement, by any legal authority, anywhere—whether in America or elsewhere. Truly, the memory of man runneth not to the contrary.

Same-Sex Marriage May Be Prohibited by the Meyer-Lawrence Jurisprudence.

In one important respect, the judicial imposition of same-sex marriage may be not only foreign to but also prohibited by the Meyer-Lawrence line of cases. The petitioners in this case have asked for comprehensive marriage, including one of its main legal effects of marriage: the presumption that a birthmother’s spouse is the father of the child. This “presumption of paternity,” now to be redesignated the “presumption of parentage,” seems to run directly against the natural-parental presumption vindicated in Meyer, and reasserted by the Supreme Court in subsequent cases, notably Troxel v. Granville (2001).

Justice Sotomayor offered one of the most eloquent elaborations of the natural-parental presumption just one day before the Supreme Court decided United States v. Windsor. In an adoption case, she reminded her colleagues that our Constitution and broader legal tradition mandate a strong preference for the relationship between a child and her naturalparents. She highlighted the various cases in which the Court had rightly held that the Due Process Clause incorporated “the presumption that a natural parent will act in the best interests of his child.”

This constitutional presumption, she wrote, reflects the recognition that the child and her natural parents have a priceless interest in their mutual relationship. Citing multiple, largely uncontroversial precedents, she wrote that the “natural parent’s desire for and right to the companionship, care, custody, and management of his or her children . . . is an interest far more precious than any property right.” Conversely, she noted, the child has a reciprocally precious right; indeed, to foreclose “a newborn child's opportunity to ever know his natural parents” is a loss that “cannot be measured.”

This constitutional presumption is rebuttable. Nonetheless, as the Court has held, the termination of a parent’s rights to his or her “natural child” requires “clear and convincing evidence” of parental neglect.

Under traditional or gender-diverse marriage, this presumption of paternity complements the natural-parental presumption. Besides reflecting truth in the vast majority of cases—the husband is indeed the father—the presumption operates, via a self-fulfilling prophecy, to make it true in more cases. Further, the presumption incorporates the rebuttal, for the adulterous father’s very adultery is itself strong evidence of an intent to abandon any resulting offspring. Accordingly, the Court affirmed the constitutionality of this ancient presumption a quarter century ago.

Under same-sex marriage, however, the presumption would seem the kind of “opposite presumption” that the Court struck down in Troxel v. Granville—there a presumption favoring a child’s grandparents. This problem has not been adequately discussed, but we can sketch it briefly here.

First and foremost, under same-sex marriage, the presumption would be always false. Every child born in such a marriage would be falsely, but legally, presumed to be the child of her mother’s partner, and to have no father at all. The veil would here become an untruth.

The effect of this new presumption would be devastating to the child’s possible relationship with her true father. The child born into a same-sex marriage would have no presumptive right to her father. To be sure, in the case of the merely anonymous sperm donor, the father may properly be said to have forfeited his duty and right by abandonment. But not all fathers to children in same-sex households will be mercenary or anonymous. Able, willing, loving fathers will be shut out by force of the marriage licenses that the states will now be judicially compelled to issue.

This child’s presumptive relation to her mother would also be impaired. In any custody dispute between the mother and her partner, the law would have to treat both equally, and impute to the mother, by the mere request for a marital license, an irrevocable consent to share custody of her future offspring with her partner. Indeed, the courts might frequently decide that her co-parent should have primary custody. Such partial forfeiture is utterly alien to due process of law. Unlike the mother who relinquishes her child to adoptive parents, the alleged consent (via the same-sex marriage ceremony itself) here would not necessarily be specific, deliberate, or, in many cases, even conscious, since the future mother will probably not be thinking of future offspring and potential custody disputes.

Lawrence v. Texas cannot justify such a conclusion. The Meyer-Lawrence line of cases began with the constitutional rights of the parent-offspring relationship, and the petitioners’ request seemingly undermines that foundation.

Lawrence’s principle and logic do not support the judicial imposition of same-sex marriage. Rather, the judicial imposition of same-sex marriage might endanger the very precedents that constitute Lawrence’s principle and logic.

David R. Upham is a married father, a citizen, a lawyer who filed the amicus brief from which this article is adapted, and an associate professor of politics at the University of Dallas, where he also blogs about marriage at whygethitched.com.